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Legislative Immunity in Rhode Island -- A New Court Decision

Saturday, November 15th, 2008

Robert Wechsler

I hadn't realized it, but two weeks ago Rhode Island Superior Court Judge
Francis J. Darigan dismissed a state ethics commission case against
the state's former senate president, William V. Irons, due to
legislative immunity. Like the
Louisiana decision, this one involved a basic conflict of interest
- whether Sen. Irons should not have voted on a bill that gave
financial benefits to a company for whom he worked.

The Rhode Island "Speech in Debate Clause" is very similar to the U.S.
Constitution's Speech or Debate Clause: "For any speech in debate in
either house, no member shall be questioned in any other place." This
has been interpreted by the Rhode Island Supreme Court (Holmes v.
Farmer, 475 A.2d 976, 981 (R.I. 1984)) to include any legislative
activity, following U.S. Supreme Court precedent.

Rhode Island's ethics commission and ethics code were created pursuant
to a constitutional amendment in 1986, and the EC argued that,
therefore, its jurisdiction over legislators carved an exception in their legislative immunity. Judge Darigan
disagreed, arguing that, with constitutional provisions, it is important
to preserve two apparently conflicting provisions wherever possible. He
also pointed out that there was nothing explicit in the ethics
provisions or in discussions about the constitutional amendment whereby legislative immunity was overriden.

But the decision says nothing about how the creation of an ethics
commission affects the separation of powers argument that is central to
the purpose of the Speech in Debate Clause, as the decision describes it. There
is no doubt that the judicial and executive branches do not have
jurisdiction over legislative activity, but the EC is neither judicial
nor executive. It has a special position in government, and its purpose
is not to deal with the content of any activity, but only with the
public goal of preventing conflicts of interest from affecting the public trust, especially through voting. Everyone involved in creating the ethics commission and code knew that recusal from voting is a central element of government ethics.

The decision also says nothing about the fact that the issue is not how
the senate president voted, but the fact of his voting when he had a
conflict. The Speech in Debate Clause is supposed to protect the
public's right to have its representative vote freely, but the public
decided that its representatives could not vote, not freely but at all,
if they had a conflict. This effectively has nothing to do with the
Speech in Debate Clause.

This situation is very different from what is happening in
Massachusetts, as discussed in my last two blog entries. There, the
speaker of the house refuses to respond to the EC's subpoena. In Rhode
Island, the senate president resigned when first questioned about his ties to two companies at the center of a scandal that ended up with the conviction of two other state senators. Sen. Irons
acted more responsibly, and one could argue that he has paid his
dues, and that it was not worth the while of the EC to pursue the
matter further. Federal prosecutors recently announced that they will not pursue influence-peddling charges against Sen. Irons.

It's also worth noting, in light of my suggestion in the last blog
entry that people vote out the speaker of the Massachusetts house, that
Rhode Island voters
did vote out the senate president who replaced Sen. Irons and who
recently was fined $12,000 by the EC for ethics violations. They also
voted out the chair of the senate finance committee, in a primary. This
has surely sent a message more powerful than any fine.

For background information, see the Ethics Commission's brief and the following articles from the
Providence Journal: